Robert Benko v District Court Kosicei, Slovak Republic
| Jurisdiction | England & Wales |
| Judge | Mr Justice King |
| Judgment Date | 12 April 2013 |
| Neutral Citation | [2013] EWHC 1745 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/1349/2013 |
| Date | 12 April 2013 |
[2013] EWHC 1745 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice King
CO/1349/2013
Mr J Stansfeld (instructed by Lawrence & Co Solicitors) appeared on behalf of the Appellant
Mr B Isaacs (instructed by Crown Prosecution Service) appeared on behalf of the Respondent
On 1 February 2013 the appellant was produced before the Westminster Magistrates' Court, having been arrested on 31 January 2013, pursuant to a European Arrest Warrant issued by the respondent. Upon that occasion the extradition of the appellant was ordered by the District Judge, the appellant being represented by the duty solicitor and no issues being raised.
This now comes before me as an appeal against the extradition order pursuant to section 26 of the Extradition Act 2003. The court's powers on an appeal under section 26 are set out in section 27. Pertinent to the present appeal is subsection 27(2) and subsection 27(4). Under subsection (2) the court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied. The conditions under subsection (4) are:
i. "(a)an issue is raised that was not raised at the extradition hearing…
ii. (b)the issue … would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently;
iii. (c)if he had decided the question in that way, he would have been required to order the person's discharge."
Following the filing and service of the appeal the appellant, through his recently obtained legal representation, now seeks to raise new issues not raised before the District Judge and to bring his appeal within the conditions of subsection (4) of section 27, which I have already set out. Specifically, he seeks to raise two issues.
The first is that the arrest warrant did not contain the information required under section 2 subsection (2) of the Extradition Act if the warrant is to qualify as a Part 1 warrant. Specifically, it is sought to be argued that the warrant failed to provide the information required both under subsection (4)(c) and under subsection (4)(d) of section 2.
Subsection (4)(c) requires that information be provided within the warrant setting out:
i. "particulars of the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence, the time and place at which he is alleged to have committed the offence and any provision of the law of the category 1 territory under which the conduct is alleged to constitute an offence."
Subsection (4)(d) simarly requires:
i. "particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence if the person is convicted of it."
The second issue sought to be pursued is that the three offences with which this appeal is now concerned are not extradition offences within the meaning of section 10 and section 64(3) of the Act. This goes to the question of dual criminality.
The first question which has to be resolved is whether the court should give leave for these new issues to be pursued. The appellant relies upon the terms of section 27(4), which I have already set out, and a line of authority, in particular the decision in Hoholm v The Government of Norway [2009] EWHC 1513 (Admin), followed in Soltysiak, R (on the application of) v Judicial Authority of Poland [2011] EWHC 1338 (Admin), establishing the principle expressed by Stanley Burnton LJ in Hoholm at paragraph 19 in these terms:
i. "… where an issue was available to be raised by an appellant on the evidence adduced at the extradition hearing, she is in general, if not always, entitled to raise that issue on appeal to this Court, even though the issue was not raised at that hearing."
The point being taken is that the issues now sought to be raised do not demand any fresh evidence, they just demand an analysis and consideration of the terms of the warrant itself.
There is a conflicting line of authority, which is best identified in the case of Koziel v District Court of Kielce Poland [2011] EWHC 3781 (Admin), in which the Administrative Court, with a constitution consisting of the President of the Queen's Bench Division and Wyn Williams J, set out the principle in this way:
i. "It must be the case in any well run system of justice that if points are to be taken, they should be taken at the trial court. This is a striking example because the point only has 'legs' on the basis of what is in the warrant. Unless there is good reason, it cannot be consistent with the fair and proper administration of justice that if someone has had advice on whether the warrant should be contested or whether a point should be taken and no points are taken, this court should require good reason, as the Court of Appeal Criminal Division does under the Criminal Appeal Act, for points to be taken that were not taken earlier at trial. That is the principle applicable in virtually every other appeal system. There is no reason why it should be different in relation to appeals on extradition."
In this case the appellant had been represented before the District Judge by a duty solicitor. The stance of the respondent is that notwithstanding this conflict of authority, no objection is taken to the raising of the issues as to the adequacy of the particulars in the warrant for the purposes of complying with section 2 of the Act. However, as a matter of principle, objection is taken to the raising of the issue under section 10. This is said in particular because, although the issue of compliance with the requirements of section 2 has to be judged without reference to extraneous information, this is not the position as regards a challenge under section 10 and the issue of whether the offence alleged in the warrant is an extradition offence and issues of dual criminality. Had these issues been raised at first instance it is said that it would have been open to the respondent to have sought extraneous information to enable that issue to be further ventilated. In effect, what is being said is that it is unfair to the respondent to allow the section 10 issue to be raised now and it is unfair to put the burden on the respondent to take a course (which it has decided against) to delay matters by seeking an adjournment of this appeal to seek extraneous information.
Although I see the force of what is being submitted by Mr Isaacs on behalf of the respondent I have decided that I should follow the principle expressed by Stanley Burnton LJ in relation to all issues in this case. I am persuaded that the Hoholm line of authority is consistent with the very provision of the statute under section 27(4). Further, as will be seen, I do not consider that the respondent has suffered any prejudice as far as the section 10 issue is concerned in the way contended for. As will be seen, confined only to section 10, the issues can be properly determined, in my judgment, by reference to the content of the warrant itself.
I turn therefore to consider the issues now raised under section 2 of the Act. It is not in dispute that if the requirements of section 2 are not complied with and if the warrant fails to include the information prescribed by section 2 it is not a Part 1 warrant. As I have indicated, any deficiencies cannot be corrected by extraneous information. Any extradition in respect of any particular offence where the warrant fails to provide the requisite information cannot be ordered and the requested person has to be discharged. For authority, one need look no further than the decisions in Dabas v High Court of Justice Madrid Spain [2007] 2 AC 31 at paragraph 50 and Office of the King's Prosecutor, Brussels v Cando Armas & Anor [2006] 2 AC 1. I accept also the importance of the principle enunciated by Lord Hope of Craighead in Cando Armas, at paragraph 24:
i. "But the liberty of the subject is at stake here, and generosity must be balanced against the rights of the persons who are sought to be removed under these procedures. They are entitled to expect the courts to see that the procedures are adhered to according to the requirements laid down in the statute."
I start with the applicable principles when considering the requirements under section 2(2) and (4)(c). There have been a number of authorities on this question but they do, in my judgment, speak with a consistent voice. In Sanjay Dhar v National Office of the Public Prosecution Service the Netherlands [2012] EWHC 697, a decision in which this court itself participated, Moore-Bick LJ put the position thus at paragraph 117:
i. "Although I accept that the warrant need not contain highly detailed information of the kind that one might expect to find in a civil pleading, it must contain enough information to enable the requested person to understand with a reasonable degree of certainty the substance of the allegations against him, namely, what he is said to have done, when and where, and also, in a case where knowledge of particular matters is an essential ingredient of the offence, sufficient information to enable him to understand why it is said that he had the necessary knowledge."
I myself said at paragraph 81 of Dhar:
i. "The Appellant is entitled in my judgment to sufficient particulars to enable him to understand how the case is being put against him on critical allegations without that understanding being obscured...
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